Court: District Court, S.D. Florida; April 16, 2015; Federal District Court
Cecilia M. Altonaga, District Judge, granted Tiffany Foster's Motion for Judgment of Acquittal due to the expiration of the statute of limitations on the charges against her, which included conspiracy to commit health care fraud and wire fraud. Foster argued that she withdrew from the conspiracies more than five years prior to the May 2014 Indictment, referencing a September 2005 fax to her supervisor, a November 2008 conversation with an attorney, and a March 2009 FBI interview where she reported Medicare fraud. The Government contended that Foster's claims of withdrawal were unsubstantiated, asserting that her 2005 communication was unclear, her 2008 statements were irrelevant since she later lied to law enforcement, and her 2009 actions were deceptive rather than a withdrawal. The court noted that to prove withdrawal, a defendant must demonstrate clear actions against the conspiracy's objectives and efforts to inform co-conspirators or law enforcement. Ultimately, the court found that the evidence did not support the Government's case, leading to the acquittal.
Cessation of activity in a conspiracy does not constitute withdrawal, as established in United States v. Acuna. The burden on a defendant claiming withdrawal is significant, and courts must interpret criminal statutes of limitations liberally in favor of repose, according to Toussie v. United States. There is a dispute regarding the necessary showing for withdrawal: the Government argues that a "full confession of guilt" is required, referencing McCray v. United States, while the defendant, Foster, contends that demonstrating termination of the agency relationship with the conspiracy suffices. The Court rejects the Government's interpretation of McCray, clarifying that the Fifth Circuit did not mandate full confession for withdrawal but discussed it in the context of mitigating sentences. Several cases cited by the Government, including Vallone and Kushner, similarly do not substantiate the claim that a full confession is necessary for withdrawal, as they do not focus on the withdrawal requirement but rather on sentencing issues. Ultimately, the Court declines to adopt the Government's interpretation regarding the necessity of a full confession for establishing withdrawal from a conspiracy.
In Brown v. United States, the court addressed a habeas petitioner's claim of ineffective assistance of counsel for not pursuing a withdrawal defense to conspiracy charges. The court determined that the defendant's incomplete confession to the FBI—specifically, his failure to disclose relationships with co-conspirators—did not undermine his attorney's performance, which was deemed a strategic decision. Consequently, Brown's unique procedural circumstances do not support the Government's argument for a rigid withdrawal standard.
The Supreme Court has indicated that the proof required for withdrawal is more flexible than a full confession. In United States v. United States Gypsum Company, the Court criticized a jury instruction that limited withdrawal demonstrations to two impractical methods, emphasizing that affirmative actions inconsistent with the conspiracy's objectives are typically sufficient for establishing withdrawal. This ruling highlights that full disclosure of an individual's actions in a conspiracy is not a prerequisite for effective withdrawal.
Furthermore, the Acuna test only necessitates that a defendant inform law enforcement about the scheme, without requiring comprehensive disclosure of personal involvement. The principle underlying the withdrawal doctrine is that a conspirator can effectively thwart the conspiracy's goals without detailing every action taken within it.
The key inquiry is whether Foster's disclosures to law enforcement represented an act to disavow or defeat the conspiracy's purpose. In evaluating the Motion, the Court will consider whether Foster's March 23, 2009 interview with FBI Special Agent Durango constituted such a withdrawal, noting that the interview was prompted by a lead from the Miami FBI office requesting information about Foster's knowledge of Hollywood Pavilion.
Foster, during her interview, identified her organization, Angels Outreach, as a drug and alcohol outreach program but denied being involved in patient brokering or operating as a front for such activities. She described HP as a detox facility with no waiting list and stated she was compensated for marketing and conducting patient assessments, without indicating any role as a patient broker. Foster provided a contract she claimed had been legally reviewed but did not disclose that it was intended to conceal her alleged patient brokering for HP. She also failed to inform Durango about HP's submission of fraudulent claims to Medicare involving bribes or kickbacks.
Foster reported issues at HP, including improper patient referrals to recovery homes and identified Gloria Himmons as a patient broker, though she did not claim to have introduced Himmons to HP. She expressed doubt about the actual delivery of services listed in a treatment schedule and noted that HP did not comply with Medicare's requirement to wait 30 days between client assessments. Foster described a practice at HP of “recycling clients” and mentioned threats against clients regarding their disability checks if they did not return.
Foster indicated that HP's focus was on increasing client numbers rather than patient care. She recounted that Kallen-Zury pressured her to provide more clients and facilitated contracts that brokered patients to recovery houses owned by Veraguas and Humes, who also threatened clients regarding their disability payments. Durango confirmed that Foster disclosed multiple criminal activities linked to HP, which included patient recycling and Medicare fraud, asserting these disclosures could aid law enforcement.
The Court must determine if a reasonable jury could conclude that Foster failed to take affirmative steps to oppose the conspiracy or to report it to law enforcement. Given her extensive disclosures of criminal conduct at HP, including seven instances of alleged crimes, the evidence supports that Foster intended to disavow the conspiracies' objectives and that her reports to the FBI were aimed at thwarting those objectives. Thus, she did take affirmative steps to oppose the conspiracies and disclosed the scheme to law enforcement effectively.
The Government alleges that Foster engaged in fraudulent behavior by lying and concealing her activities during an interview, specifically by producing 'sham contracts' related to patient recruitment at HP, which the Government argues constitutes an affirmative act in furtherance of a conspiracy. However, the Government fails to provide convincing evidence that Foster's lack of full disclosure negates her claimed withdrawal from the conspiracy. The Court finds that Foster made substantive disclosures to the FBI, leading to the conclusion that no reasonable jury could determine her interview with Durango was an act furthering the conspiracies. As a result, the Court rules that Foster withdrew from the charged conspiracies over five years prior to her indictment, protecting her from punishment under 18 U.S.C. § 3282(a). Consequently, the Court grants Foster's motion, sets aside the verdict of guilt, and orders her acquittal. The U.S. Marshal is instructed to release her immediately. Additionally, Foster's motion for a new trial is deemed moot. The analysis dismisses the relevance of precedent cases cited by the Government, particularly highlighting that the standards for disclosure to law enforcement do not apply as argued.
The authority cited by the Brown court, specifically United States v. Chambers, does not support the Government's argument regarding the need for a 'full confession.' In Chambers, the defendant admitted to selling $100 worth of cocaine but did not disclose the extent of the conspiracy or identify other conspirators. This lack of comprehensive information weakens the Government's position. The excerpt notes that a defendant could provide information without disavowing the conspiracy, particularly if critical details are omitted. The court may accept testimony from a government employee as true, without needing to resolve conflicting evidence. Testimony from Durango indicated that it would be illegal for HP to bill Medicare for unprovided services, reinforcing this point. Consequently, the court declines to explore Foster's alternative arguments for withdrawal related to prior communications and documents.
